Anyone who is caught possessing illegal drugs in the state of Texas will likely face criminal charges. Such a crime has a range of consequences, from fines to prison time. The consequences will depend on the nature of the drug that was found as well as the amount. Being accused of owning a controlled substance in Texas, such as heroin or cocaine, will result in criminal charges based on the possession law.
How Do People Get Possession Charges?
A person can be charged with possession of a controlled substance in the state of Texas in a few different ways. The first way is when the drug is discovered on the person during a search by the police. If the police find a drug in someone’s pocket or anywhere else on their person, criminal drug charges are likely to follow.
However, drug charges can also be made based on a claim of constructive possession. Constructive possession occurs when drugs are found in a place normally controlled by one person, or that one person is within reach of. For example, a person’s car, their home, their clothing, or other personal items.
How Drugs Are Classified in Texas
Possession laws are set by the Texas Health and Safety Code. Controlled substances are divided into 5 groups, each coming with its own set of penalties. The penalties can be severe depending on the circumstances and include steep fines and even jail time. Some controlled substances are prescription medications. They count as a controlled substance when someone possesses them without a valid prescription. The penalty levels and examples of drugs in each level are as follows:
- Level 1: Ketamine, methamphetamine, heroin, cocaine
- Level 1A: Acid (LSD)
- Level 2: PCP, MDMA, Cannabis extracts such as wax and shatter
- Level 3: Xanax, Ritalin
- Level 4: Buprenorphine, Pyrovalerone, etc
Potential Penalties for Possession of Drugs in Texas
Whether someone is charged with a misdemeanor or felony ultimately depends on the nature of the drug crime they are being accused of committing. The charges a person can receive for possessing drugs in Texas are outlined below, based on penalty group.
Level One
- Less than 1 gram: A person caught with less than 1 gram of a level 1 controlled substance will be charged with a state jail felony. The potential penalties include a state jail sentence between 180 days and 2 years long as well as a fine up to $10,000.
- Between 1 and 4 grams: A person caught with a level 1 controlled substance in an amount between 1 and 4 grams will be charged with a third-degree felony. The potential penalties include a state prison sentence between 2 and 10 years long as well as a fine up to $10,000.
- Between 4 and 200 grams: Anyone caught with more than 4 but less than 200 grams of a level 1 controlled substance will be charged with a second-degree felony. The potential penalties include a state prison sentence between 2 and 20 years long as well as a fine of up to $10,000.
- Between 200 and 400 grams: If someone is caught with more than 200 but less than 400 grams of a level 1 controlled substance, they will be charged with a first-degree felony. The potential penalties include a state prison sentence between 5 and 90 years as well as a fine up to $100,000.
- More than 400 grams: Being caught with more than 400 grams of a level 1 controlled substance will result in an enhanced first-degree felony charge, a prison sentence between 10 and 99 years long, and a fine up to $100,000.
When someone receives an enhanced first-degree felony, it means that the minimum consequences are increased. In this example, the minimum prison sentence increases from 5 years to 10 years.
Level One A
The only controlled substance in 1A is LSD. The penalties are based on the amount of units a person has at the time they are arrested for possessing the drug. The penalties for possessing LSD in Texas are as follows:
- Less than 20 units: A person caught with less than 20 units of LSD will be charged with a state jail felony. The penalties include a state jail sentence between 180 days and 2 years. They also include a fine up to $10,000.
- Between 20 and 80 units: Possessing more than 20 but less than 80 units of LSD in Texas will lead to a third-degree felony charge. The penalties include a state prison sentence between 2 and 10 years long as well as a fine up to $10,000.
- Between 80 and 4,000 units: Being caught with more than 80 but less than 4,000 units of LSD in Texas will result in a second-degree felony charge. The potential penalties include a state prison sentence between 2 and 20 years long as well as a fine up to $10,000.
- Between 4,000 and 8,000 units: If someone is caught with more than 4,000 but less than 8,000 units of LSD, they will receive a first-degree felony charge. The consequences include a state prison sentence between 5 and 99 years long as well as a fine up to $10,000.
- 8,000 or more units: Having 8,000 or more units of LSD will result in an enhanced first-degree felony charge. The potential penalties include a state prison sentence between 15 and 99 years long as well as a fine up to $250,000.
Level 2
- Below one gram: Being caught with less than a gram of a level 2 controlled substance will result in a state jail felony charge. The potential consequences include a state jail sentence between 180 and 2 years long as well as a fine up to $10,000.
- Between 1 and 4 grams: Being caught with more than a gram but less than 4 grams of a level 2 controlled substance will result in a third-degree felony charge. The penalties include a state prison sentence between 2 and 10 years long as well as a fine up to $10,000.
- Between 4 and 400 grams: A person arrested for possessing more than 4 but less than 400 grams of a level 2 controlled substance will receive a second-degree felony charge. The consequences may include a state prison sentence between 2 and 20 years long as well as a fine up to $10,000.
- Over 400 grams: Anyone caught with more than 400 grams of a level 2 controlled substance in Texas will receive an enhanced first-degree felony charge. The potential penalties include a state prison sentence between 5 and 99 years long as well as a fine up to $5,000.
Levels 3 and 4
A person would face the same consequences if caught with a level 3 or level 4 controlled substance in Texas. These drugs are considered the least dangerous controlled substances, but the penalties can still be severe depending on the amount a person is caught with.
- Less than 28 grams: A person caught with less than 28 grams of a level 3 or level 4 controlled substance will be charged with a Class A misdemeanor, a much less severe penalty when compared to a felony. The consequences include up to 1 year in the county jail as well as a fine up to $4,000.
- Between 28 and 200 grams: Someone arrested for possessing more than 28 but less than 200 grams of a level 3 or 4 controlled substance will be charged with a third-degree felony. They could face a state prison sentence between 2 and 10 years long as well as a fine up to $10,000.
- Between 200 and 400 grams: Anyone caught with more than 200 but less than 400 grams of a level 3 or 4 controlled substance will be charged with a second-degree felony. The potential consequences include a state prison sentence between 2 and 20 years long as well as a fine up to $10,000.
- More than 400 grams: Being caught with more than 400 grams of a level 3 or 4 controlled substance can result in an enhanced first-degree felony charge. The penalty for this charge includes a prison sentence between 5 and 99 years long as well as a fine of up to $50,000.
Paraphernalia
It is illegal for someone to possess drug paraphernalia in Texas. The law considers any item that can be used to process, package, or consume drugs to be paraphernalia. However, being caught with drug paraphernalia will not result in a felony charge. Possession of drug paraphernalia results in a Class C misdemeanor, and possession with the intent to distribute is a Class A misdemeanor.
Defenses for Drug Possession Charges
Although a drug possession charge can be intimidating, there are some legal strategies that can be very effective in preventing serious consequences. Some examples of commonly used legal defenses for drug possession charges include:
- The drugs belong to another person: This is a defense that is used commonly, but it is only effective in certain cases.
- Unlawful searching: Law enforcement officers are only allowed to search a person’s property or body in certain circumstances. A drug possession charge may be reduced or dropped if it is discovered that an officer found the drugs during an unlawful search. For example, if an officer opened someone’s trunk without permission and found drugs, any resulting charges might be dropped due to violating that person’s 4th amendment rights.
- They were not the suspected drugs: Many common household items, such as cleaners or baking products, resemble controlled substances. For someone to be convicted, it must be proven that the substance they were arrested for was in fact the drug in question. A lawyer may be able to bring up errors in any chemical testing done to the substance to prove it isn’t an illegal drug.
- Entrapment: Entrapment occurs when police officers encourage someone to commit a crime they would not have otherwise committed. For example, if an officer threatens someone with violence if they do not purchase drugs, that purchase cannot be held against that person.
- The drugs were prescribed to them: Certain prescription drugs are controlled substances and cannot be in someone’s possession if they do not have a prescription for them. If someone arrested on suspicion of drug possession can prove the drugs belong to them, they may be able to have their charges dropped.
We Can Help
If you have been arrested for possession of a controlled substance and need legal counsel, contact Derek A. Adame, Attorney at Law today. We have a deep understanding of the laws surrounding drug charges in Texas and will fight tirelessly to prevent you from facing severe consequences. We will provide you with empathetic and aggressive legal representation based on the strategy we begin to develop during our free consultation. Contact us today at 940.441.4239.